1 <!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN">
\r
5 <meta http-equiv="content-type" content="text/html; charset=ISO-8859-1">
\r
7 <meta name="author" content="Andrew DeFaria">
\r
8 <title>Administrative Review of Approved I-129F</title>
\r
12 <div align="Right"><small><font face="Helvetica, Arial, sans-serif">Andrew
\r
13 DeFaria</font></small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
14 </font></small><small><font face="Helvetica, Arial, sans-serif">
\r
15 6187 Ellerbrook Way</font></small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
16 </font></small><small><font face="Helvetica, Arial, sans-serif">
\r
17 San Jose, California 95123-5012</font></small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
18 </font></small><small><font face="Helvetica, Arial, sans-serif">
\r
19 Day Phone: (408)-855-8860x121</font></small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
20 </font></small><small><font face="Helvetica, Arial, sans-serif">
\r
21 Evening Phone: (408)-363-0562</font></small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
22 </font></small><small>Email: </small><small><a href="mailto:Andrew@DeFaria.com">
\r
23 Andrew@DeFaria.com</a>
\r
24 </small><small> </small><small><br>
\r
26 <div align="Justify"><small> </small>
\r
27 <p><small><font face="Arial, Helvetica, sans-serif">Senator
\r
28 Dianne Feinstein<br>
\r
29 One Post Street, Suite 2450<br>
\r
30 San Francisco, CA 94104</font></small></p>
\r
31 <small><small> </small></small><small><small> </small></small><small><small>
\r
32 </small></small><small><small> </small></small><small><small>
\r
33 </small></small><small><small> </small></small><small><small>
\r
34 </small></small><small><small> </small></small><small><small>
\r
35 </small></small><small><small> </small></small><small><small>
\r
36 </small></small><small><small> </small></small><small><small>
\r
37 </small></small><small><small> </small></small><small><small>
\r
38 </small></small><small><small> </small></small><small><small>
\r
39 </small></small><small><small> </small></small><small><small>
\r
40 </small></small><small><small> </small></small><small><small>
\r
41 </small></small><small><small> </small></small><small><small>
\r
42 </small></small><small><small> </small></small><small><small>
\r
43 </small></small><small><small> </small> </small><small><small>
\r
45 <table cellpadding="2" cellspacing="0" border="0">
\r
48 <td valign="Top"><small>Re:</small><small><br>
\r
49 </small><small> </small></td>
\r
50 <td valign="Top" colspan="2"><small><b>Administrative
\r
51 Review of Approved I-129F</b></small><small><br>
\r
52 </small><small> </small></td>
\r
55 <td valign="Top"><small><br>
\r
56 </small><small> </small></td>
\r
57 <td valign="Top"><small> </small>
\r
60 <div align="Left"><small><font face="Helvetica, Arial, sans-serif"><b>
\r
61 Petitioner:</b></font></small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
62 </font></small></div>
\r
63 <small> </small></td>
\r
64 <td valign="Top"><small><font face="Helvetica, Arial, sans-serif">
\r
65 Andrew DeFaria</font></small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
66 </font></small></td>
\r
69 <td valign="Top"><small><br>
\r
70 </small><small> </small></td>
\r
71 <td valign="Top"><small> </small>
\r
74 <div align="Left"><small><font face="Helvetica, Arial, sans-serif"><b>
\r
75 Beneficiary:</b></font></small><small><font face="Helvetica, Arial, sans-serif"><b><br>
\r
76 </b></font></small></div>
\r
77 <small> </small></td>
\r
78 <td valign="Top"><small><font face="Helvetica, Arial, sans-serif">
\r
79 Olga Fedoryaka</font></small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
80 </font></small></td>
\r
83 <td valign="Top"><small><br>
\r
84 </small><small> </small></td>
\r
85 <td valign="Top"><small> </small>
\r
88 <div align="Left"><small><font face="Helvetica, Arial, sans-serif"><b>
\r
89 CSC File #:</b></font></small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
90 </font></small></div>
\r
91 <small> </small></td>
\r
92 <td valign="Top"><small><font face="Helvetica, Arial, sans-serif">
\r
93 </font></small><small><font face="Helvetica, Arial, sans-serif">
\r
94 WAC0101653678</font></small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
95 </font></small></td>
\r
98 <td valign="Top"><small><br>
\r
99 </small><small> </small></td>
\r
100 <td valign="Top"><small> </small>
\r
103 <div align="Left"><small><font face="Helvetica, Arial, sans-serif"><b>
\r
104 Case ID #:</b></font></small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
105 </font></small></div>
\r
106 <small> </small></td>
\r
107 <td valign="Top"><small><font face="Helvetica, Arial, sans-serif">
\r
108 WRW2001009031</font></small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
109 </font></small></td>
\r
115 <small>Dear Senator Diane Feinstein,</small><br>
\r
117 <small>Thank you for your letter dated February 4, 2002. Unfortunately,
\r
118 again, I find it insufficient. Telling me that processing of my petition
\r
119 will take 24 to 30 months from some unknown date is telling me nothing. In
\r
120 order to determine an amount of time one needs to have at least the start
\r
121 time and a duration or an end date. You do not tell me the end date, only
\r
122 the duration. You do not tell me the start time therefore it is impossible
\r
123 to determine the end date lacking that information. </small><small><br>
\r
124 </small><small><br>
\r
125 </small><small>You state "at this time it is impossible to determine the
\r
126 exact date the petition was received". At what time will this become possible?
\r
127 </small><small><br>
\r
128 </small><small><br>
\r
129 </small><small>Also, statutorily the INS is bound, by Sec. 103.2 of the
\r
130 INA regarding withholding of adjudication which states "has not been completed
\r
131 within one year of its inception, the district director shall review the matter
\r
132 and determine whether adjudication of the petition or application should
\r
133 be held in abeyance for six months or until the investigation is completed,
\r
134 whichever comes sooner". Assuming the INS received the petition in a reasonable
\r
135 amount of time (and I have reason to believe that the INS had received my
\r
136 petition around the end of May 2001) we are approaching that 1 year anniversary.
\r
137 As such I am curious to know if they INS will conform to their own laws and
\r
138 whether or not I will be notified of the district director's decision or again
\r
139 be left in the dark. Seems to me in order to adequately determine when that
\r
140 one year anniversary occurs one must know the date of which to start counting.
\r
141 So again I implore you to find out when that start date was, when the INS
\r
142 had officially received my petition back from the Warsaw embassy.</small><small><br>
\r
143 </small><small><br>
\r
144 </small><small>Additionally I find the fact that I am being withheld from
\r
145 living my life with the woman that I love by my own government for upwards
\r
146 of 2 years simply unacceptable. Especially when you consider the fact that
\r
147 I am being denied this opportunity without any stated just cause or any mechanism
\r
148 to petition for redress for upwards of 2 years. Effectively this is not much
\r
149 different than a prison sentence being tried and convicted without the benefit
\r
150 of due process, without knowing what the charges are, without to the opportunity
\r
151 to address this charges or to appeal them in a proper legal manner all because
\r
152 a government agency cannot process simply paperwork for years! How can this
\r
153 be right? How can this be just? All I'm asking is for my "case" to be heard
\r
154 in a timely fashion! 24 to 30 months is </small><small><b>not</b></small>
\r
155 <small>timely fashion by anybody's definition of the word "timely"</small>
\r
158 <font face="Helvetica, Arial, sans-serif"><small>As you continue to
\r
159 refuse to address my questions I can find no other solution but to continually
\r
160 ask the questions. If you really believe that 24 to 30 months is not that
\r
161 long of a time for me to wait for an answer then surely you will not mind
\r
162 24 to 30 months of my continually asking the same questions. </small><small>
\r
163 I am <b>still </b>seeking to obtain answers to th</small><small>e following
\r
164 questions:</small><small><br>
\r
167 <li><small>When will you have an answer for the following question:
\r
168 What is the exact date that the INS received my returned petition?</small></li>
\r
169 <li><small>You stated that the California Service Center is backlogged
\r
170 several months. How many months is the California Service Center backlogged?
\r
171 Because I've already been waiting 10 months. In a few more months it'll be
\r
172 a year! What is going to be done to stop these unnecessary delays?</small></li>
\r
173 <li><small>I still do not have a definitive statement of what the
\r
174 problem is with my petition. You mean to tell me that I'm to be kept separated
\r
175 from my fiancee for more than 2 years and I will not be told why? How could
\r
176 this be right? How can this be just? How can you let your constituents suffer
\r
177 such pain? As a United States Citizen I demand to know why I am being persecuted
\r
178 for years without a known just cause! This is similar to a Writ of Habeus
\r
179 Corpus</small></li>
\r
180 <li><small>According to Lisa Piascik <PiascikL@state.gov>
\r
181 of the Visa Services in the state department there is a difference between
\r
182 an approved petition and an approved visa application. The embassy takes
\r
183 the visa application and must either issue or refuse the visa. My fiancée's
\r
184 visa was refused. According to Lisa the embassy must issue a written explanation
\r
185 why they refused the visa ("New facts arose..." doesn't cut it because there
\r
186 are no new facts! See below). My fiancée and I never received the
\r
187 written explanation. Now I know your office approached the embassy inquiring
\r
188 on my behalf as to the reasons my petition was returned for administrative
\r
189 review but only managed to receive a vague response. Now I am asking you
\r
190 to get this written explanation about why my fiancée's visa was refused.</small>
\r
191 <small>I want a written explanation from the embassy.</small></li>
\r
194 <small>Following are a few points that remain unanswered from my last
\r
195 fax. Why do you continue to not answer these?<br>
\r
198 <li><small>I would still like to know what status my petition is in
\r
199 as well as some indication of what steps are ahead. I have no foreknowledge
\r
200 of the steps and procedures that the INS takes in these matters. I am
\r
201 trying to understand this process, where I am in this process, what's
\r
202 next and what other steps lie ahead. Again I do not think that this is
\r
203 too much to ask for. </small></li>
\r
204 <li><small>I also feel that I should be allowed the opportunity to present
\r
205 evidence and/or additional information to support my case. I was told,
\r
206 on a number of occasions by the Warsaw Embassy that I can submit additional
\r
207 evidence however I was never told how I can do that nor where I should
\r
208 submit the evidence. Can I or can I not submit evidence to support my case?
\r
209 If I cannot then why did the embassy tell me, several times mind you, that
\r
210 I could?</small></li>
\r
213 <small>And although the following is rather lengthy I feel it is still
\r
214 pertinent and as such I ask you to respond to it again. Make no mistake
\r
215 about it I will continue to ask these questions and push these issues until
\r
216 they are addressed. They are important to me and if you were in my shoes
\r
217 I'm sure you would do likewise. I feel like I have been treated unfairly
\r
218 and I have been pleading with your office for assistance so that this wrong
\r
219 can be righted. <br>
\r
221 I do believe that I am being unfairly judged and that I was unfairly
\r
222 treated by the embassy. I have already filed a complaint about the consular
\r
223 who treated me very disrespectfully, intimidating me and being downright
\r
224 rude. I also feel I've been treated with disrespect by INS officials too.
\r
225 I would like to be treated with respect from your office and the people
\r
226 that work there.</small><small><br>
\r
227 </small><small><br>
\r
228 </small><small>And I do believe that my petition should not have been
\r
229 returned by the embassy, that there was not a legal basis for the consular
\r
230 to return the petition. I say so because of the following section from
\r
231 the Foreign Affairs Manual (</small><small>9 FAM 42.43 N2.1 Petitions Approved
\r
232 in Error): </small>
\r
233 <blockquote><small>The approval of a petition is usually considered to be
\r
234 prima facie evidence that the alien beneficiary has met the petition requirements.
\r
235 Unless a petition has been approved in error, the petition can only be
\r
236 returned if the consular officer knows, or has reason to believe, that the
\r
237 beneficiary is not entitled to status. Knowledge and reason to believe must
\r
238 be based upon evidence that the INS did not have available at the time of
\r
239 adjudication. This evidence often arises as a result of or during the consular
\r
240 officer’s interview. </small><b><small><u>Reason to believe must be more
\r
241 than mere conjecture or speculation</u></small></b><small>—there must exist
\r
242 probability, </small><b><small><u> supported by evidence</u></small></b><small>
\r
243 that the alien is not entitled to status.</small></blockquote>
\r
244 <small> And 9 FAM 42.43 N2.2 Cases of Sham Marriages: </small>
\r
246 <blockquote><small>INS has minimum evidentiary standards that must be established
\r
247 before revocation proceedings may begin. These minimum evidentiary standards
\r
249 <p><small>(1) A written statement from one or both of the parties to
\r
250 the marriage or documentary evidence that money exchanged hands; or </small></p>
\r
252 <p><small>(2) </small><b><small><u>Factual evidence developed by the
\r
253 consular officer that would convince a reasonable person that the marriage
\r
254 was a sham marriage entered into to evade immigration laws.</u></small></b></p>
\r
258 <small>It is clear that the wording of these clauses
\r
259 is fairly strong and that the intention was to stress that the consular
\r
260 officer should not be second guessing the decisions made by the INS unless
\r
261 there exists <u><b>factual evidence developed by the consular officer</b></u>
\r
262 to indicate otherwise. Further it is expressly mentioned that <u><b>conjecture
\r
263 or speculation</b></u> is not enough to return a petition, that there
\r
264 must be probability <u><b>supported by evidence</b></u> before the consular
\r
265 should consider returning the petition. It seems clear that the INS knows
\r
266 that such returned petitions can cause undue hardships and delays. </small><small><br>
\r
267 </small><small><br>
\r
268 </small><small>And yet I feel strongly that the consular did return
\r
269 my petition without sufficient factual evidence. This is why I had tried
\r
270 so hard to find out what factual evidence they were basing their decision
\r
271 to return the petition on. You see I was at the interview and I heard what
\r
272 the consular heard. My petition had clearly disclosed both of my fiancée's
\r
273 prior marriages, their start and end dates as well as both of her divorce
\r
274 decrees. For the life of me I cannot fathom what new facts the consular
\r
275 thought arose at the interview that the INS did not have available at the
\r
276 time of adjudication. There were no new facts. I feel confident when I say
\r
277 that I believe the consular return the petition based on conjecture and
\r
278 speculation that my fiancée must have married solely for the purposes
\r
279 of obtaining an immigration benefit and if he sent back my petition then
\r
280 surely the INS would find something.</small><small><br>
\r
281 </small><small><br>
\r
282 </small><small>However they will find that they are mistaken because
\r
283 I have already researched this, obtained a Freedom Of Information Act
\r
284 (FIOA) file that clearly shows the record and there is no evidence in
\r
285 the record that my fiancée ever even applied for an immigration
\r
286 benefit based on her second marriage (her first marriage was a K1 so obviously
\r
287 they applied for AOS for her first marriage but I feel that the consular
\r
288 was clearly questioning her second marriage not her first and I know the
\r
289 first marriage was not entered into fraudulently either).</small><small><br>
\r
290 </small><small><br>
\r
291 </small><small>I fail to understand what is so secretive about
\r
292 these new facts that I cannot be made aware of them. This is definitely
\r
293 not a matter of national security and there isn't even a hint of a terrorist
\r
294 threat or anything like that. Yet the embassy will not tell me what these
\r
295 supposed new facts are and I believe that this is because they don't have
\r
296 any new facts and to admit that would be to admit that they did not follow
\r
297 the proper procedures.</small><small><br>
\r
298 </small><small><br>
\r
299 </small><small>While I may not be privileged enough to be told
\r
300 these facts perhaps you and your office can be told what these facts really
\r
301 are. If so then I'm sure that you would see that my petition was erroneously
\r
302 returned in violation of the regulations and you might better understand
\r
303 my anger over being put though this pain for unjust causes. Could you find
\r
304 out these facts for me, tell me them if you can or keep them to yourselves
\r
305 if you must, but at least become aware of them so you can see my viewpoint?</small><small><br>
\r
306 </small><small><br>
\r
307 </small><small>Further, I have already spoken with both of my fiancée's
\r
308 ex husband's. Neither of them feel that their marriages were entered into
\r
309 solely for the purpose of frauding the INS for an immigration benefit.
\r
310 My fiancée states that the purposes of her marriages were not solely
\r
311 for an immigration benefit, the record shows she didn't even apply for
\r
312 a visa for her second marriage and she even left the country on her own
\r
313 accord in good terms with the hopes of someday finding her true love and
\r
314 returning to America. She's found her true love in me. And now we are waiting
\r
315 for my government to allow her to return. You can help correct this wrong
\r
316 I feel that has been perpetrated on us.</small><small><br>
\r
317 </small><small><br>
\r
318 </small><small>I await your response.</small>
\r
320 <blockquote><small><small> </small></small>
\r
322 <blockquote><small><small> </small></small>
\r
325 <blockquote><small><small> </small></small>
\r
328 <blockquote><small><small> </small></small>
\r
331 <p><small><font face="Helvetica, Arial, sans-serif">Very truly
\r
332 yours,</font></small></p>
\r
336 <p><small><font face="Helvetica, Arial, sans-serif"><img src="/Images/Signature.gif" alt="Andrew DeFaria" width="200" height="37">
\r
337 </font></small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
338 </font></small><small><font face="Helvetica, Arial, sans-serif">
\r
339 Andrew DeFaria</font></small></p>
\r
340 <small> </small></blockquote>
\r
341 <small> </small></blockquote>
\r
342 <small> </small></blockquote>
\r
343 <small> </small></blockquote>
\r
344 <small> </small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
345 </font></small><small><br>
\r
346 </small><small> </small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
347 </font></small><small><font face="Helvetica, Arial, sans-serif"><br>
\r
348 </font></small></div>
\r
349 <small> </small></div>
\r
projects / clearscm.git / blob